The Supreme Court's Overruling of Constitutional Precedent: An Overview

November 29, 2005
RL33172

As a general rule, the Supreme Court adheres to precedent, citing the doctrine of stare
decisis (“to
stand by a decision”). The general rule of stare decisis is not an absolute rule,
however, and the
Court recognizes the need on occasion to correct what are perceived as erroneous decisions or to
adapt decisions to changed circumstances. In deciding whether to overrule precedent the Court takes
a variety of approaches and applies a number of different standards, many of them quite general and
flexible in application. As a result, the law of stare decisis in constitutional decision making
can be
considered amorphous and manipulable, and it is difficult to predict when the Court will rely on
stare decisis and when it will depart from it. This report cites instances in which the Court
has
overruled precedent as well as instances in which it has declined to do so, and sets forth the
rationales that the Court has employed.

CONTENTS

Summary

As a general rule, the Supreme Court adheres to precedent, citing the doctrine of stare decisis
("to stand by a decision"). The general rule of stare decisis is not an absolute rule, however, and the
Court recognizes the need on occasion to correct what are perceived as erroneous decisions or to
adapt decisions to changed circumstances. In deciding whether to overrule precedent the Court takes
a variety of approaches and applies a number of different standards, many of them quite general and
flexible in application. As a result, the law of stare decisis in constitutional decision making can be
considered amorphous and manipulable, and it is difficult to predict when the Court will rely on
stare decisis and when it will depart from it. This report cites instances in which the Court has
overruled precedent as well as instances in which it has declined to do so, and sets forth the
rationales that the Court has employed.

In General

The Supreme Court has overruled 228 of its own decisions over the years, and the most
controversial of these decisions involved constitutional interpretation.(1) How the Supreme Court
explains its reversals of direction in constitutional interpretation is the subject of this report.(2)

As a general rule, the Supreme Court adheres to precedent, citing the doctrine of stare decisis
("to stand by a decision"). This means that, when the Court has laid down a principle in deciding
a case, ordinarily it will apply that same principle in future cases with substantially similar
facts.(3) The general rule
of stare decisis is not an absolute rule, however; the Court recognizes the need on occasion to correct
what are perceived as erroneous decisions or to adapt to changed circumstances. In deciding whether
to overrule precedent the Court takes a variety of approaches and applies a number of different
standards, many of them quite general and flexible in application. As a result, the law of stare
decisis in constitutional decision making has been called amorphous and manipulable, and has been
criticized as incoherent.(4)

Adherence to precedent is a fundamental principle of jurisprudence that promotes certainty
in the law and uniformity in the treatment of litigants, and thereby prevents arbitrariness.(5)

<blockquote>The obligation to follow precedent begins with
necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial
system could do society's work if it eyed each issue afresh in every case that raised it. Indeed, the
very concept of the rule of law underlying our own Constitution requires such continuity over time
that a respect for precedent is, by definition, indispensable.(6)</blockquote>

Stare decisis is not a constitutional command; as Justice Frankfurter wrote, "stare decisis is
a principle of policy and not a mechanical formula of adherence to the latest decision."(7) The doctrine reflects a policy
judgment that "in most matters it is more important that the applicable rule of law be settled than that
it be settled right."(8) A
safety valve is deemed necessary, however. In some instances it becomes important to the Court to
correct an earlier interpretation that it views as erroneous or no longer viable. Although most
Justices agree that error correction should be the exception to the rule, defining the circumstances
under which a decision should be overruled is a difficult task. An inconsistent approach by the Court
in resolving the tension between the opposing goals of continuity and error correction can itself
create uncertainty and unpredictability.

The Court often explains that it is less reluctant to overrule a decision that involves
constitutional interpretation rather than interpretation of a statute.

<blockquote>[I]n cases involving the Federal Constitution, where
correction through legislative action is practically impossible, this Court has often overruled its
earlier decisions. The Court bows to the lessons of experience and the force of better reasoning,
recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also
in the judicial function.(9)</blockquote>

Nonetheless, when justifying an overruling the Court usually looks for something in addition to its
belief that a case was wrongly decided. "Although adherence to precedent is not rigidly required in
constitutional cases, any departure from the doctrine of stare decisis demands special
justification."(10)

"Special justification" can be one or more of several different considerations, and how strong
a justification the Court requires can vary with the importance of the precedent as well as with the
importance the Court attaches to overruling it. The decision whether to adhere to a constitutional
decision "is a complex and difficult one . . . that must account for a variety of often competing
considerations."(11) In
reexamining a constitutional precedent, the Court looks to "a series of prudential and pragmatic
considerations designed to test the consistency of overruling a prior decision with the ideal of the
rule of law, and to gauge the respective costs of reaffirming and overruling a prior case."(12) The Court has looked to
the following general considerations in overruling precedent.

<blockquote>[We] may ask whether the rule has proven to be
intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116
(1965); whether the rule is subject to the kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of repudiation, e.g., United States v. Title
Ins. & Trust Co., 265 U.S. 472, 486 (1924); whether related principles of law have so far developed
as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean
Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts have so changed, or come to be seen
so differently, as to have robbed the old rule of significant application or justification, e.g., Burnet,
supra, at 412 (Brandeis, J. dissenting).(13)</blockquote>

Applications

All of these possibilities may be examined when the Court is asked to overrule a decision at
the heart of a major national controversy.(14) In considering and rejecting a request that it overrule its
landmark abortion decision, Roe v. Wade,(15) the Court looked to the following factors.

<blockquote>[W]e may inquire whether Roe's central rule has been
found unworkable, whether the rule's limitation on state power could be removed without serious
inequity to those who have relied upon it or significant damage to the stability of the society
governed by it; whether the law's growth in the intervening years has left Roe's central rule a
doctrinal anachronism discounted by society; and whether Roe's premises of fact have so far changed
in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in
dealing with the issue it addressed.(16)</blockquote>

Finding none of these factors present, the Casey majority saw no basis for overruling Roe.
In their view, Roe had not proven unworkable; there was reliance of a sort ("an entire generation has
come of age free to assume Roe's concept of liberty in defining the capacity of women to act in
society, and to make reproductive decisions");(17) "no erosion of principle going to liberty or personal autonomy"
had undermined "Roe's central holding"; because Roe's holding was viewed as consistent with other
personal liberty decisions, reliance on Roe's precedent was viewed as unlikely to lead to erroneous
decisions; and, although "time [had] overtaken some of Roe's factual assumptions," no changed
circumstances had undermined Roe's central holding.(18) The Casey Court emphasized that "a decision to overrule should
rest on some special reason over and above the belief that a prior case was wrongly decided."(19)

<blockquote>A basic change in the law upon a ground no firmer than
a change in our membership invites the popular misconception that this institution is little different
from the two political branches of Government. No misconception could do more lasting injury to
this Court and to the system of law which it is our abiding mission to serve.(20)</blockquote>

Societal changes were important -- albeit somewhat different -- considerations in two major
overruling decisions of the Twentieth Century, West Coast Hotel v. Parrish (1937)(21) and Brown v. Board of
Education (1954).(22)
In West Coast Hotel, the Court overruled its 1923 decision in Adkins v. Children's Hospital,(23) which had invalidated a
state minimum wage law for adult women. West Coast Hotel was not a narrow ruling, but rather in
effect reversed the whole line of Lochner decisions premised on acceptance of laissez-faire
economics and relying on employers' liberty of contract to restrict social welfare legislation.(24) The nation's experience
during the Great Depression had changed perceptions between Adkins and West Coast Hotel. As the
Court put it, reconsideration was "imperative" due in part to "the economic conditions which have
supervened, and in the light of which the reasonableness of the exercise of the protective power of
the state must be considered."(25) Although also grounding its decision in due process doctrine and
in correcting what it viewed as an erroneous interpretation in Adkins, the Court took judicial notice
of "the unparalleled demands for relief which arose during the recent period of depression," and
concluded that a state could legislate to prevent the exploitation of a class of workers who were
"relatively defenseless" and who might become dependent upon the community for support.(26)

In Brown v. Board of Education, the Court arguably forced social change more than it
responded to it.(27) The
Court abandoned its interpretation of the Equal Protection Clause as allowing "separate-but-equal"
treatment of the races, and held that racial segregation in the public schools was inherently
unequal.(28) The Court
justified its changed interpretation by changing its conclusion about the stigmatizing effects of
segregation. "Whatever may have been the extent of psychological knowledge at the time of Plessy
v. Ferguson, this finding [that racial segregation stigmatizes minority children] is amply supported
by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected."(29) The Court cited academic
studies, rather than general societal acceptance or experience, for the "modern authority" from which
its "psychological knowledge" was derived.(30)

As the Casey Court synthesized Brown and West Coast Hotel, "[e]ach rested on facts, or an
understanding of facts, changed from those which furnished the claimed justifications for the earlier
constitutional resolutions." Because "each case was comprehensible as the Court's response to facts
that the country could understand," the decisions were also "defensible, not merely as the victories
of one doctrinal school over another by dint of numbers . . . , but as applications of constitutional
principle to facts as they had not been seen by the Court before."(31)

A divisive social issue was also implicated in 2003 when the Court, overruling a 1986
decision, struck down a state law that prohibited private, consensual, homosexual sodomy.
Lawrence v. Texas,(32)
unlike Brown and West Coast Hotel, did not purport to rest on changed facts or a changed
understanding of facts. Rather, the Court in Lawrence asserted that the Court in Bowers v.
Hardwick(33) had
misread its own precedent and had too narrowly defined the liberty interest at stake. The Court
justified its departure from stare decisis by concluding that the "foundations" of Bowers had been
"eroded" by subsequent decisions,(34) that the "weakened" precedent of Bowers had been subjected to
"substantial and continuing criticism,"(35) and that there had been "no individual or societal reliance . . . of
the sort that could counsel against overturning its holding."(36) Dissenting Justice Scalia
challenged these conclusions, and suggested that Roe "satisfies these conditions to at least the same
degree as Bowers."(37)

Other recent overruling decisions that received considerable public attention barred
application of the death penalty to mentally retarded persons and to juveniles. In 1989 the Court had
refused to hold that execution of a mentally retarded individual,(38) or of an individual who
was 16 or 17 at the time of his offense,(39) violated the Eighth Amendment; in 2002, however, the Court
reversed its conclusion about execution of the mentally retarded,(40) and in 2005 it did so for
juveniles.(41) These
decisions shed little light on general principles governing departures from stare decisis, however,
because they were controlled by the unique language of the Eighth Amendment's prohibition against
"cruel and unusual punishment."(42) Basically, the Court determined that, although execution of the
mentally retarded or of juveniles had not been "unusual" in 1989, it had become so by 2002 and
2005, respectively.(43)

Often, especially if no major social issue such as abortion or racial segregation is at issue,
society's understanding of the precedent is not implicated, and the Court may change and narrow its
focus. Other factors, such as reliance or workability, may carry the day. For example, lack of
workability was the principal reason cited by the one Justice whose changed vote required the Court
to reverse itself on a federalism issue for the second time in less than a decade. Justice Blackmun,
writing for a five-to-four majority in Garcia v. San Antonio Metropolitan Transit Authority,(44) declared that the test the
Court had formulated nine years earlier for determining whether Congress could impose the
minimum wage and overtime requirements of the Fair Labor Standards Act on state governments
-- insulating states when performing "traditional governmental functions" -- was not only a
misinterpretation of the Constitution, but had proved "unworkable."(45) Lower courts had
struggled without success to apply the test, the Court itself had disclaimed a "static, historical"
approach to defining "traditional" governmental functions,(46) and the Court had
abandoned a somewhat analogous tax immunity distinction between governmental and proprietary
functions.(47)

The other side of the coin, of course, is that if a decision has proved workable in practice (and
if its theoretical underpinnings have not been eroded), Justices may be unwilling to overrule it
despite disagreement on the merits. For example, in refusing to overrule its landmark decision in
Miranda v. Arizona,(48)
the Court in Dickerson v. United States(49) pointed to the fact that Miranda warnings had become
"embedded in routine police practice to the point where the warnings have become part of our
national culture."(50)
Chief Justice Rehnquist's opinion for the Court stated that "principles of stare decisis weigh heavily
against overruling" Miranda "[w]hether or not we would agree with Miranda's reasoning and its
resulting rule, were we addressing the issue in the first instance."(51)

Reliance interests can sometimes tip the scales against overruling. In declining to overrule
a 25-year-old precedent interpreting the Commerce Clause as prohibiting a state from collecting use
taxes on out-of-state mail order businesses that do not have a physical presence within the state, the
Court stated that the rule had "engendered substantial reliance and has become part of the basic
framework of a sizeable industry."(52)

Occasionally the Court overrules precedent with only minor emphasis on "special
circumstances" justifying departure from stare decisis. In Payne v. Tennessee,(53) for example, the Court
overruled two relatively recent decisions(54) that had barred consideration of victim impact statements during
capital sentencing. The Payne Court asserted that departure from precedent is justified "when
governing decisions are unworkable or are badly reasoned."(55) The Court went on to
distinguish property and contract rights cases "where reliance interests are involved" from "cases
such as the present one involving procedural and evidentiary rules," and pointed to the fact that
"Booth and Gathers were decided by the narrowest of margins, over spirited dissents."(56)

Making more of an effort to pay homage to stare decisis, the Court in Adarand Constructors
v. Pena(57) asserted
that correcting error can itself sometimes be a "special circumstance" that justifies overruling
precedent. That occasion arises, Justice O'Connor asserted for the Court, when the precedent at issue
was a departure from "intrinsically sounder" and well-established principles -- when the Court
"cannot adhere to our most recent decision without colliding with an accepted and established
doctrine."(58) The
decision that Adarand overruled, Metro Broadcasting, Inc. v. FCC,(59) had held, in effect, that
Congress had greater leeway than the states in adopting remedial racial preferences; this
interpretation, the Adarand Court asserted, "undermined important principles . . . established in a line
of cases dating back over 50 years."(60)

The theory that departure from well-established doctrine renders a precedent subject to
overruling was not new with Adarand. Rather, the Adarand opinion found support in several earlier
decisions said to rest on the same principle.

<blockquote>In United States v. Dixon, 509 U.S. 688 (1993), we
overruled the case of Grady v. Corbin, 495 U.S. 508 (1990), because Grady "lack[ed] constitutional
roots" and was "wholly inconsistent with earlier Supreme Court precedent." Dixon, supra, at 704,
712. In Solorio v. United States, 483 U.S. 435 (1987), we overruled O'Callahan v. Parker, 395 U.S.
258 (1969), which had caused "confusion" and had rejected "an unbroken line of decisions from
1866 to 1960." Solorio, supra, at 439-441, 450-451. And in Continental T. V., Inc. v. GTE Sylvania
Inc., 433 U.S. 36 (1977), we overruled United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967),
which was an abrupt and largely unexplained departure" from precedent, and of which "[t]he great
weight of scholarly opinion ha[d] been critical."(61)</blockquote>

It may be, however, that Payne and Adarand put greater emphasis on the precedent's departure from
well-established doctrine, and less emphasis any other justifications for overruling.(62)

Both Dixon and Adarand overruled relatively recent decisions. As Justice O'Connor pointed
out in her concurring opinion in Adarand, a quick overruling of a precedent that departed from its
antecedents does not "depart from the fabric of the law [but rather] restore[s] it," and also minimizes
the opportunity for reliance that could deter overruling.(63)

Although the newness of a precedent is sometimes seen as reducing its immunity from
overruling, the oldness of a precedent does not always prevent its overruling. For example, the Court
in Erie Railroad v. Tomkins(64) overruled Swift v. Tyson,(65) a decision then
almost 100
years old, on the basis that its recognition of a federal common law was unconstitutional, and had
led to undesirable results in commercial activities. There are numerous other instances of the Court's
overruling of hoary precedent.(66) Indeed, the older a precedent is, the more possibility there is that
its doctrinal underpinnings will have been eroded through developments in the law.(67)

Age of a precedent can provide the opportunity for its reinforcement as well as for its erosion.
A precedent "that has become integrated into the fabric of the law" is more likely to have engendered
reliance interests, and its overruling may even damage "the ideal of the rule of law."(68) Under this theory,
espoused in the Court's opinion in Casey, stronger arguments should be required to overrule a
precedent that embodies the Court's reliance on the Constitution to settle a "national controversy."

<blockquote>[W]hen the Court does act in this way, its decision
requires an equally rare precedential force to counter the inevitable efforts to overturn it and to
thwart its implementation. . . . [O]nly the most convincing justification under accepted standards of
precedent could suffice to demonstrate that a later decision overruling the first was anything but a
surrender to political pressure, and an unjustified repudiation of the principle on which the Court
staked its authority in the first instance. So to overrule under fire in the absence of the most
compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond
any serious question.(69)</blockquote>

One of the reasons that there is so little consistency in the Court's approach to overruling
decisions is that individual Justices "individually . . . balance their normative views on how the
constitutional provision at issue should be interpreted and their perceptions of the practical needs to
submerge those views for the sake of certain social or institutional values such as stability,
continuity, or consensus."(70) There are a number of implications, not the least of which is the
fact that an individual Justice may strike a different balance between stare decisis and error
correction depending upon what the issue is and how strongly that Justice feels about the "error" side
of the balance. And of course individual Justices occasionally change their minds as to the
workability of precedents.(71)

Also, a Justice's judicial philosophy can affect the balance. An originalist presumably would
favor error correction over preservation of precedent regardless of how well established that
precedent is. Justice Thomas recently advocated this approach in construing the "public use"
limitation of the Takings Clause.

<blockquote>Today's decision is simply the latest in a string of our
cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original
meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the
government's eminent domain power. Our cases have strayed from the Clause's original meaning,
and I would reconsider them.(72)</blockquote>

Justice Thomas has also questioned the holding of a 1798 case limiting application of the Ex Post
Facto Clause to punitive legislation.(73)

It is not just originalists who sometimes question long lines of authority. For example,
different groups of four dissenting Justices have long challenged the Court's interpretation of the
Eleventh Amendment, set forth in 1890 in Hans v. Louisiana,(74) and reinforced in a number
of the Court's federalism decisions over the last several decades, as barring federal court jurisdiction
over suits brought by citizens against their own state. The Amendment by its terms applies only to
suits brought against a state by citizens of another state, but the Court has interpreted the provision
as representing a broader recognition of the principle of sovereign immunity. Justice Brennan,
joined by three other Justices in 1985, urged reconsideration.

<blockquote>Because I believe that the doctrine rests on flawed
premises, misguided history, and an untenable vision of the needs of the federal system it purports
to protect, I believe that the Court should take advantage of the opportunity provided by this case to
reexamine the doctrine's historical and jurisprudential foundations. Such an inquiry would reveal
that the Court . . . has taken a wrong turn.(75)</blockquote>

On the current Court, Justices Stevens, Souter, Ginsburg, and Breyer have continued this argument
despite the fact that the Court majority has continued to apply and extend the sovereign immunity
principle reflected by Hans.(76)

For years Justices Brennan and Marshall voted against imposition of the death penalty on the
basis of their views that the death penalty "is in all circumstances cruel and unusual punishment,"
despite the accretion of precedents by which the Court accepted capital punishment as constitutional,
and Justice Blackmun later came to hold the same view.(77)

How does one measure the impact of stare decisis on the Court's decision making? One
extensive study of the subject suggests that the critical question is whether "precedent actually
cause[s] justices to reach decisions that they otherwise would not have made."(78) This can be verified if
Justices voice disapproval of precedent but nonetheless vote to uphold it.(79) Spaeth and Segal's
conclusion is that "in the realm of stare decisis, minority will does not defer to majority rule."(80)

Conclusion

This sampling of the Court's practice in adhering to or departing from precedent seems to
bear out Justice Souter's observation, quoted above, that the decision whether to overrule precedent
involves "a variety of often competing considerations"(81) (including competing perspectives among the Justices). Stare
decisis is always one such consideration when the Court decides whether to overrule precedent. But
because the Court does not appear to have developed a "coherent or stable conception of the
appropriate role of precedent in constitutional adjudication,"(82) it is difficult to predict
when the Court will rely on stare decisis and when it will depart from it.

Footnotes

1. (back) "Supreme Court Decisions Overruled
by Subsequent Decisions," in Constitution of the United States of America, Analysis and
Interpretation, 2387-2399 (CRS 2002; 2004 Supplement) (listing 225 overruled decisions through the end
of the 2003 Term; the Court overruled three more decisions during its 2004 Term).

3. (back) An alternative approach is to distinguish
or narrow a precedent. A less charitable view is that "[t]he alternative to disavowing precedent is
manipulating it." Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 Cornell L. Rev.
422, 424 (1988).

4. (back) "[I]t is quite clear to any observer that
the Court has no coherent or stable conception of the appropriate role of precedent in constitutional
adjudication," and this fact creates the impression that "the doctrine is invoked only as a mask hiding other
considerations." Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev.
723, 753, 743 (1988). "We do not have -- never can have -- a comprehensive theory of precedent." Frank
H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 Cornell L. Rev. 422, 423 (1988).

5. (back) "To avoid an arbitrary discretion in the
courts, it is indispensable that they should be bound down by strict rules and precedents." The Federalist No.
78, at 502-03 (Alexander Hamilton) (Robert Scigliano ed., 2001).

6. (back)Planned Parenthood v. Casey, 505 U.S.
833, 854 (1992) (citing Benjamin Cardozo, The Nature of the Judicial Process 149 (1921)). Put other
ways, "to change the concept of the law every other month makes a mockery of its majesty and a yo-yo of
its practice." Gweszcz Appeal, 206 Pa. Super. 397, 213 A.2d 155, 159 (1965) (dissenting opinion of Judge
Watkins); frequent overruling of precedent can "bring adjudications of this tribunal into the same class as
a restricted railroad ticket, good for this day and train only." Smith v. Allwright, 321 U.S. 649, 669 (1944)
(Justice Roberts dissenting).

9. (back)Burnet, 285 U.S. at 407 (Justice
Brandeis dissenting). Stare decisis "has only a limited application in the field of constitutional law." St.
Joseph Stock Yards Co. v. United States, 298 U.S. 38, 94 (Justices Stone and Cardozo concurring). "Our
willingness to reconsider our earlier decisions has been particularly true in constitutional cases, because in
such cases correction through legislative action is practically impossible." Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 63 (1996). The converse, of course, is that the Court "give[s] great weight to stare decisis in
the area of statutory construction [because] 'Congress is free to change this Court's interpretation of its
legislation.'. . . Congress, not this Court, has the responsibility for revising its statutes." Neal v. United
States, 516 U.S. 295-96 (1996) (quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977)).

11. (back) Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 573 (1993) (concurring opinion of Justice Souter).

12. (back)Planned Parenthood v. Casey, 505
U.S. at 854. References to Casey are to the opinion of the Court, not to the plurality opinion of Justices
O'Connor, Kennedy, and Souter, or to other opinions.

14. (back) It is not often that the Court "calls the
contending sides of a national controversy to end their national division by accepting a common mandate
rooted in the Constitution." It has done so "twice in our lifetime, in the decisions of Brown and Roe."
Planned Parenthood v. Casey, 505 U.S. 833, 867 (1992).

17. (back) Reliance is more commonly associated
with commercial interests. "Considerations in favor of stare decisis are at their acme in cases involving
property and contract rights, where reliance interests are involved." Payne v. Tennessee, 501 U.S. 808, 828
(1991).

27. (back) The Brown Court did not address, but
necessarily rejected, South Carolina's stare decisis societal reliance argument that a whole social order rested
on the separate-but-equal interpretation. Brief for Appellees on Reargument at 59-60, Briggs v. Elliott, 347
U.S. 483 (1954). (Briggs was one of the cases consolidated with Brown.)

30. (back) 347 U.S. at 494 n.11. The lower court
in Brown, though bound by the Supreme Court's separate-but-equal doctrine, had made similar findings that
segregation branded minority children as inferior. Id. at n.10.

31. (back)Casey, 505 U.S. at 863-64. The fact
that Brown was a unanimous decision also undermined the argument that one doctrinal school had triumphed
over the other by "dint of numbers" or by changed membership on the Court.

34. (back) 539 U.S. at 576 (relying principally
on Casey for its description of a broad liberty interest in defining one's personal relationships, and on Romer
v. Evans, 517 U.S. 620 (1996), which struck down a Colorado provision that denied homosexuals protection
under anti-discrimination law).

37. (back) 539 U.S. at 586. While agreeing that
Romer had eroded the foundations of Bowers, Justice Scalia asserted that Washington v. Glucksberg, 521
U.S. 702 (1997), had similarly eroded the foundations of Roe and Casey. Roe and Casey, of course, had, like
Bowers, been subjected to "unrelenting criticism." As for reliance, the Justice suggested that there had been
"overwhelming" societal reliance on Bowers that far exceeded the reliance that the Casey Court found to
have been placed on Roe. Id. at 588-91.

42. (back) Recognition of evolving societal
standards is found in some judicial constructs of substantive due process as well as in the language of the
Eighth Amendment. Compare, e.g., Trop v. Dulles, 356 U.S. 86, 100-01(1958) (plurality opinion) (the
Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress
of a maturing society)" with Rochin v. California, 342 U.S. 165, 172, 173 (1952) (due process is violated by
official conduct that "shocks the conscience"; states in their prosecutions must "respect certain decencies of
civilized conduct").

43. (back) The Court reached its 2005 conclusion
about the juvenile death penalty in spite of the fact that in 2002 it had contrasted the national consensus said
to have developed against executing the mentally retarded with what it then saw as a lack of consensus
regarding execution of juveniles. Atkins, 536 U.S. at 315 n.18.

48. (back) 384 U.S. 436 (1966). Miranda held
that as a general rule statements by suspects in custodial interrogation are admissible at trial only if police
first warned the suspect of his right to remain silent and to be represented by counsel.

52. (back)Quill Corp. v. North Dakota, 504 U.S.
298, 317 (1992) (refusing to overrule National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386
U.S. 753 (1967), on Commerce Clause grounds). The Court in Quill Corp. did overrule Bellas Hess's
alternative holding, that imposition of use taxes violated the Due Process Clause, and thereby opened the
possibility that Congress, in exercise of its commerce power, could authorize state taxation of mail order
businesses. Id. at 318-19.

56. (back) 501 U.S. at 828-29. Citing a single
state court decision in which the judges disagreed on how to interpret Booth, the Court also asserted that the
decisions had "defied consistent application by the lower courts." Id. at 830. The blunt dissent by Justice
Marshall asserted that the only change in the four years since Booth was in "the personnel of this Court," not
in the law or the facts. Id. at 844. Between Booth and Payne, Justice Kennedy had replaced Justice Powell,
author of the Booth opinion, and Justice Souter had replaced Justice Brennan, who had voted in the majority
in Booth and had written the Court's opinion in Gathers. Both of the new Justices joined the Payne majority.

61. (back) 515 U.S. at 232-33 (also citing Payne
v. Tennessee and two other decisions).

62. (back) The Dixon Court concluded that Grady
"'contradicted an unbroken line of decisions,' contained 'less than accurate' historical analysis, and ha[d]
produced 'confusion.'" 509 U.S. at 711. The Solorio decision emphasized the "confusion" and unworkablitly
of O'Callahan's service-connection test as well as its rejection of the "unbroken line of decisions." See 483
U.S. at 448-50. The GTE Sylvania Court also relied on workability problems, citing the struggles of lower
federal courts to interpret and apply Schwinn. See 433 U.S. at 48 & n.14.

67. (back)See, e.g., Hughes v. Oklahoma, 441
U.S. 322, 331 (1979), finding that the analysis of Geer v. Connecticut, 161 U.S. 519 (1896), had been
"eroded to the point of virtual extinction" by the evolution of Commerce Clause interpretation.

68. (back)Adarand, 515 U.S. at 233 (concurring
opinion of Justice O'Connor). See also Justice Scalia's concurring and dissenting opinion in Pennsylvania
v. Union Gas Co., 491 U.S. 1, 34-35 (1989), refusing to join four other Justices in overruling Hans v.
Lousiana, 134 U.S. 1 (1890), pointing out that numerous cases had followed Hans and that 49 Congresses
had legislated on the assumption that states were constitutionally insulated from suits in federal courts.

71. (back)See, e.g., Justice Blackmun's opinion
for the Court in Garcia, supra n. 44, changing his position from National League of Cities and rejecting as
unworkable the test adopted in that case; and Justice Scalia's recent statement in Tennessee v. Lane, 541 U.S.
509, 554 (2004) (dissenting), that he will no longer adhere to the "congruence and proportionality" standard
the Court had devised for measuring the validity of statutes purporting to enforce the Fourteenth Amendment.

72. (back)Kelo v. City of New London, 125 S.
Ct. 2655, 2678 (2005) (Justice Thomas dissenting). Similarly, the Justice advocated reconsideration of
Commerce Clause jurisprudence in United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring): "I write
separately to observe that our case law has drifted far from the original understanding of the Commerce
Clause. In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both
makes sense of our recent case law and is more faithful to the original understanding of that Clause."

76. (back)See, e.g., Seminole Tribe of Florida
v. Florida, 517 U.S. 44, 76, 100 (1996) (dissenting opinions of Justices Stevens and Souter, respectively);
Alden v. Maine, 527 U.S. 706, 760, 814 (1999) (dissenting opinion of Justice Souter) ("I expect the Court's
late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being
as unrealistic as the other, as indefensible, and probably as fleeting.")